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Himachal Pradesh High Court · body

2010 DIGILAW 268 (HP)

PIARE ALIAS PYARE LAL. v. STATE OF H. P.

2010-01-07

SURINDER SINGH

body2010
JUDGMENT Surinder Singh, J.(Oral)-The appellant has challenged his conviction passed under Section 115 of the Indian Penal Code by the learned trial Court, whereby he has been sentenced to undergo the rigorous imprisonment for a period of two years and to pay a fine of Rs.5,000/-. In default of payment of fine, appellant was further ordered to undergo simple imprisonment for a period of six months. 2. Heard and gone through the record. 3. In brief, the prosecution story can be status thus. Appellant and complainant PW4 Dhian Singh were running the shops of electrical goods in village Lunj, Tehsil Dehra, District Kangra, H.P. They had the professional rivalry. It is alleged that on 24th September, 1996, at about 4 p.m. PW6 Mohinder Singh came to the shop of Dhian Singh aforesaid with a plastic Kupi (small bottle), containing sulphuric acid. He was accompanied by Shri Phagun Ram and informed Dhian Singh complainant that the said plastic bottle was handed over to them by the appellant to finish Dhian Singh, with a direction to mix it in the liquor bottle, which was to be consumed by the complainant and to accomplish this task, the appellant had promised to pay each of them Rs.5,000/-. 4. The complainant took the plastic Kupi to PW5 Sunita Kumari, Pradhan of the Gram Panchayat and revealed the entire story to her. Sunita Kumari summoned the appellant to confirm the allegations, but he denied. Since the matter could not be resolved, the complainant was directed to lodge the report in the Police Station. 5. PW4 Dhian Singh next day, approached the police and lodged FIR Ex.PW3/A on 25th September, 1996. Police reached the spot and took into possession plastic container Ex.P1 vide seizure memo Ex.PW3/B. Later, it was sent for the chemical examination. The report is Ex.PX confirming the fact that it contained sulphuric acid. After recording the statements of the witnesses and completing the investigation, Challan was presented in the court for the trial of the appellant. 6. Learned trial Court charged the appellant for the offence, under Section 307 of the Indian Penal Code. The appellant abjured his guilt and claimed trial. 7. To prove its case, prosecution examined PW4 complainant Dhian Singh, PW5 Sunita Kumari, Pradhan of the Gram Panchayat and PW6 Mohinder Singh, besides examining other official witnesses. Appellant was also examined under Section 313 of the Code of Criminal procedure. The appellant abjured his guilt and claimed trial. 7. To prove its case, prosecution examined PW4 complainant Dhian Singh, PW5 Sunita Kumari, Pradhan of the Gram Panchayat and PW6 Mohinder Singh, besides examining other official witnesses. Appellant was also examined under Section 313 of the Code of Criminal procedure. He denied the circumstances, which were found attendant upon him. When called upon to enter upon his defence, no evidence in defence was led by him. 8. At the end of trial, learned trial Court held the appellant guilty for abetting the offence, as such, convicted and sentenced him under Section 115 of the Indian Penal Code, as aforesaid. 9. I have reappraised the evidence on record and at the very outset of the case, I would like to say that the star witness of prosecution PW6 Mohinder Singh did not support the prosecution case, as he turned hostile and another witness Phagnu Ram was not examined. Although, Mohinder Singh stated that he had handed over the bottle to PW4 Dhian Singh, which was entrusted to him by the appellant and further stated that appellant told him that to inform Dhian Singh that he should return Rs.5000/- which he owed to him. He was contradicted with his statement under Section 161 Cr.P.C. but he categorically denied that he ever stated to the police that the said bottle contained the sulphuric acid and that appellant told him to mix it with the liquor, which was to be consumed by the complainant. 10. PW4 Dhian Singh complainant had handed over that bottle to PW5 Pradhan Sunita Kumari in the presence of a ward member Ramesh (not examined). He also stated that the appellant was summoned by the Panchayat, but he did not admit his guilt and ultimately, he reported the matter to the police. Vide memo Ex.PW4/A the bottle was taken into possession. Significantly, he stated that the said acid which was in Kupi was transferred into a glass bottle and then it was sealed. When the plastic container Ex.P1 was shown to him during the trial, he denied that it was the same bottle, wherein sulphuric acid was transferred and categorically stated that the bottle Ex.P1 cannot sustain the sulphuric acid therein, whereas, prosecution case is that it was Ex.P1 taken into possession and was sent for chemical analysis and tested positive. Thus the entire prosecution story fades away. 11. Thus the entire prosecution story fades away. 11. Further the statement of PW7 Rumal Singh, Sub Inspector, who investigated the case may be taken note of. He contradicted the statement of the complainant in material particulars. He nowhere stated that the contents of plastic Kupi, were transferred into a glass-bottle. It is pertinent to point out that he stated that PW5 Sunita Kumari in the presence of a ward member Ramesh, produced small plastic bag containing sulphuric acid, which was sealed with seal impression- ‘A’ and he took it into possession vide memo Ex.PW1/A and further according to PW1 ASI Daulat Ram, who was the then MHC in the Police Station, a Kupi was sent for the examination to the Forensic Science Laboratory. Then where is that Kupi or the plastic bag, which was sent to the Laboratory because the complainant has denied that it was Ex.P1. This material contradiction has changed the whole complexion of the case and prosecution has miserably failed to over rule the possibility of tempering with the contents, which were alleged to have been recovered. 12. Therefore, I do not find that the prosecution was able to prove the case against the appellant beyond reasonable doubt. 13. For the reasons aforesaid, the appellant is entitled for the benefit of doubt. Therefore, the impugned judgment of conviction and sentence, passed by the learned trial Court against the appellant, is hereby set-aside. Consequently, the appeal is allowed and the appellant is acquitted of the offence. 14. The appellant is discharged from his bail bonds entered upon by him at any stage during the proceedings of this appeal. 15. The matter stands accordingly disposed of. Send down the records.